NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
(Burlington Northern Inc.
STATEMENT OF CLAIM: "After properly filing my name in accordance with Rule
9,
in
1977,
I am still waiting to be called back as of Sept.
15, 1978.
Since the first of
1978
union men lower in seniorty (sic) have been
hired. When I found out other men were working, I promptly contacted f. C.
Crotty, President of Brotherhood of Maintenance of Way Employees. I stated that
I was entitled to back pay for the time I was not working. The union submitted
a claim with Burlington Nothern (sic) for back pay on August
15, 1978.
As of
September
15, 1978
I have not been informed of any further action being taken
by the union or the railroad."
OPINION OF
BOARD: Claimant was employed as a section laborer on March
30,
1977.
On September
5, 1977,
Claimant was laid off account
reduction in force. Claimant contends that he filed proper notice under Rule
9
of the Parties' Agreement to retain seniority and advise of recall when the
forces would be increased. In mid
1978,
Claimant learned that forces had been
increased and a claim submitted to Carrier account their failure to recall
Claimant to service in accordance with his seniority standing. The instant claim was
filed with the Board September
15, 1978
seeking back pay from June
21, 1978
until the claim is settled. There is no request for reinstatement of seniority
by Claimant. On the other hand, Carrier in response to claim filed on the
property covering said violation declined claim account Claimant's failure to
file name and address as required by Rule
9
of the Parties' Agreement. Carrier
further contends that certain procedural and jurisdictional errors appear in
the instant claim, including Claimant's premature filing of this claim with the
Third Division, while the claim instituted on the property was still being
progressed in accordance with provisions of the Parties' Agreement.
It is quite obvious from a review of the instant claim that on the
date that Notice of Intention was filed with this Division, the primary claim
was in the appeal stage of handling on the property and the instant claim as set
forth has not met the requirements of Section
3,
First (i) of the Railway Labor
Act, Circular
No. 1
of the National Railroad Adjustment Board, nor Rule
42 of
the Parties' Agreement.
Given the undisputed fact that these requirements have not been fulfilled
in this claim, we have no choice but to dismiss the claim for lack of jurisdiction.
Award Number 22439 Page 2
Docket Number N6-22751
FIND : The Third Division of the Adjustment Board, after giving the parties
to this dispute due notice of hearing thereon and upon the whole
record and all the evidence., finds and holds
That the Carrier and Employe involved in this dispute are respectively
Carrier and Employe within the meaning of the Railway Labor Acts as approved
June 21,
1934;
That the claim was not progressed on the property as required by the
Railway Labor Act, and that this Division of the Adjustment Board dues not
have jurisdiction to decide the dispute involved herein on its merits;
That hearing thereon has been held and concluded; and
That the claim is barred.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOPRD
By Order of the Third Division
ATTEST
Executive Secretary
Dated at Chicago, Illinois, this 15th day of June 1979.
Award Number
22440
Page
3
Docket Number
NS-22407
These principles are equally applicable today in this case.
See also Third Division Award Nos. 20581 (Iranden),
7.9556
(Lieberman),
18476
(Rimer) among others. The opinions expressed in Second Division
Award Bo.
6628
are equally appropriate to the fact situation in this
case. There we- find:
"Since it is well nigh impossible to ascertain
claimant-'s subJective state of mind at the
moment he wrote out his resignations we must
make a determination of the issue at hand from
facts existing at that time. The fact that
Mr. Becker suggested resignation does not amount
to coercion, nor does the alternative of either
facing a hearing or resigning. The Organization
mast come forward with sufficient evidence from
which we could conclude that an individual of
normal sensibilities would feel compelled to
resign due to coercion or intimidation by a
Carrier officer. We do not feel the Organization has sustained this burden imposed upon.
it. Claimant himself stated that he 'assumed'
he could have been fired; that Mr. Becker
'implied' that he would be fired; and that he
wrote out his resignation feeling he had no
alternative. Such does not constitute coercion,
duress, or intimidation on the part of a Carrier
officer. Rather, it constitutes misaprehension (sic)
of the facts on claimant's behalf for which he mast
bear the consequences.
"Nor did Carrier violate Rule
39
(Discipline) in
not holding a hearing relative to this issue.
That Rule guarantees that an employee will not
be disciplined or discharged without first being
given a hearing. It is inapplicable herein as
we are not faced with a discipline or discharge
but with a resignation."
Petitioner in this case has failed to meet the burden of
proof that claimant's resignation was secured through coercion or duress.
There is no basis upon which to find a violation of any of the Rules of
the controlling Agreement. Having voluntarily terminated his employment
with the Carrier, all of claimant's rights under the collective Agreement
were terminated. Accordingly, this claim must be denied.
ii
Award Number 2244
o Page 4
Docket Number Ns-22407
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing there
on, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes
Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
That the Agreement was not violated.
Claim denied.
NATIONAL RAILROAD ADJUSTMENT: BOARD
Bv
Order of Third Division
ATTEST:
xecutive
d "
· Dated at Chicago, Illinois, this
29th
day of
June 1979.